Paul Brodeur’s book takes us through the fifty years that began when the Johns-Manville Corporation had good cause to suspect that asbestos could be fatal to the employees engaged in its manufacture.
Throughout the 1950s, Johns-Manville stifled those suspicions and did its utmost to discourage their diffusion into the climate of public awareness. In the Sixties, more and more negligence lawyers began suing Johns-Manville for the damage done not just to workers who had fabricated asbestos but to hundreds of those who had installed the final product. By the Seventies, Johns-Manville’s disguises had been shredded and, as the tide of tort actions rose, the indignation of juries mounted with it until 1982 when Johns-Manville scurried to the shelter of the Bankruptcy Act’s Chapter 11, that last refuge of the negligent and worse.
Before too long, the company will probably emerge and reclaim the reverence that is successful acquisition’s automatic due as soon as it agrees to reserve $2.5 billion for settling some thirty thousand claims already extant, and uncountable others that may arise over the next twenty-five years.
Outrageous Misconduct will not have as many readers as its author’s industry and his subject’s fascination deserve. Brodeur is a writer who succeeds in spite of himself, and the journey toward entire appreciation of his work is hard going. His narrative flow is choked with weeds and snags, and the struggle through this mass of detail—much of it irrelevant—is apt to make those of us who now and then complain about our editors thank heaven we have them when we see what can happen to someone who doesn’t seem to have had any.
Brodeur’s defect is an undeflected wrath that, proper though it is for these circumstances, would have served us all better if it had been cooled by a few degrees of distance and detachment. In that case, he would not, I think, have called his book Outrageous Misconduct, because its most telling point is that the performance of Johns-Manville and the institutions with which it dealt was altogether normal.
The Corporation: In 1933, Johns-Manville’s directors voted to settle with eleven workers, who claimed that they had contracted “asbestosis,” for less than $3,000 apiece, with a guarantee from their lawyer that he would never sue again. The directors knew the danger then, and in 1948, they were even more precisely informed when their own medical director reported a high incidence of asbestosis and recommended that those afflicted not be told so they “can live and work in peace and the company can have the benefit of many years of experience.”
Johns-Manville made it an internal policy not to reveal to any employee the results of any X-ray that showed damage to his lungs and busied itself sedulously with censorship of trade journals that might have discussed the asbestosis problem and the tempering of medical treatises that might have illuminated it.
The Lawyers: The Johns-Manville matter provided the occasion for fierce criticisms of the legal profession, and all of them fell upon the negligence lawyers, without whose energies, as Brodeur soundly observes, the asbestos industry might have slumbered untroubled while thousands of its workers were gasping for breath.
In 1984, a partner in Davis Polk reproved the greed of his social inferiors in a New York Times article captioned “Lawyers Are Grossly Overpaid.” He meant tort lawyers, of course, and forebore to mention his firm’s $4.5 million bill to Manville for shepherding it through bankruptcy. We may also take for granted the veneration his established colleagues rendered to Vandiver Brown, Johns-Manville’s house counsel, who was asked by a plaintiff’s lawyer if it was company policy to keep asbestosis victims on the payroll until they died without knowing enough to file disability claims, and who replied: “Yes, we save a lot of money that way.”
Government: In 1980, US Senator Gary Hart introduced a bill to relieve Manville of further suits and put the burden of paying future claims upon the government. The Manville Corporation is a Hart constituent in Colorado; its executives contribute to his campaigns, and his bill drafters found its wisdom a considerable resource.
When he and Hart were wallowing in the primaries, former Vice President Walter Mondale was tempted to raise the issue of his opponent’s strange comity with the country’s least admired corporation. Mondale paltered with the question awhile before limply engaging it at the last minute. His hesitancy might be excused by the condition that two of his most intimate advisers were lobbyists for asbestos companies and a third was a partner in the firm that served Manville as counsel. All were pillars of the institution of liberalism, and it can be said of them, as of all the national institutions that were parties to this affair, that their conduct was outrageously normal.
January 30, 1986